Soviet surface ships on July 29, 1953 in the area of the Sea of Japan in which the shooting incident took place, and it further implies that the weather conditions of fog and darkness were such that the observations of the crews of search craft reported in the United States Government's notes were not in fact made. These statements, as above indicated, are false and misleading. The weather, during the hours of daylight, was in fact foggy but at the low altitudes at which the search aircraft flew, and on the surface of the sea at which the naval craft proceeded, there was as the Soviet Government well knows intermittent visibility permitting the observations which were made and which were reported by the United States Government.

10. The Soviet Government states that "as a result of investigation, it has been confirmed that the Soviet authorities have no information concerning the crew of the American bomber B-50". For the reasons above stated this statement must be characterized as false and misleading.

III

The United States Government finds and it charges that the foregoing actions of the pilots of the Soviet aircraft and of the competent Soviet authorities made the Soviet Government guilty of deliberate and willful violations of international law, on account of which it has become liable to the United States Government for damages and other amends:

1. Since the Soviet Government has evaded the questions in the United States Government's note of January 26, 1954 on this subject, the United States Government declares that the limit of the territory of the Soviet Government in the area of the incident extends no further than three nautical miles from the mean low water mark of the shore line of the Soviet-held land mass in this area, following the sinuosities of the coast and the sinuosities of each of the Soviet-held islands. While the United States Government in instructions to its personnel has prohibited any overflying aircraft or seagoing craft from coming closer than twelve miles to Soviet-held territory in traversing the international waters of the Sea of Japan or the air space above, the United States Government takes this opportunity again to inform the Soviet Government that it does not recognize the claim of the Soviet Government to territorial waters in excess of three miles from its coast. In the opinion of the United States Government there is no obligation under international law to recognize claims to territorial waters in excess of three miles from the coast.

2. In the circumstances of the case it was the duty of the Soviet Government to make every effort, following the wrongful destruction of the B-50 aircraft, to search for and pick up members of the crew, dead or alive, to cooperate with all other searching aircraft and surface craft in such search and rescue operations and promptly to turn over to authorities of the United States Government rescued personnel, the bodies of any dead personnel picked up and any portions of the aircraft salvaged, or to make arrangements for their prompt delivery

to the United States Government. The failure of the Soviet Government to do so constitutes violation of international obligations.

3. It was the duty of the Soviet Government to make truthful statements to the United States Government in the notes above mentioned which the Soviet Government delivered to the United States Government in connection with this incident. The willful making of false or misleading statements in these circumstances constitutes a violation of international obligation.

4. The continued detention of survivors by the Soviet Government, and the failure of the Soviet Government immediately upon receipt of information at any time from its own sources of the observation of bodies of any of the crew members, constitute violations on the part of the Soviet Government of international obligation.

5. Any shooting by the crew of the B-50 at the MIG aircraft, in the circumstances of the case, was lawful as an exercise of the right of self-defense. The B-50 having been fired upon and hit without prior warning, the crew of the B-50 were justified in the exercise of selfdefense in shooting at the approaching MIG aircraft.

IV

The United States has suffered the following items of damage in direct consequence of the foregoing illegal acts and violations of duty and international legal obligations, for which the Soviet Government is liable, and the United States Government demands that the Soviet Government pay the following sums on account thereof:

1. United States Air Force airplane B-50 type No. 47-145A and equipment thereon, amounting in total to $1,468,908.56.

2. Damages to the United States by the willful and unlawful conduct of the Soviet Government $491,584.38.

3. Damages to Captain John Ernst Roche, a national of the United States, for injuries to him, $25,000.00.

4. Damages to the next-of-kin, nationals of the United States, for the deaths of Captain Stanley Keith O'Kelley, Master Sergeant Francis Luther Brown, First Lieutenant James Gordon Keith, $150,000.00.

5. Damages to the next-of-kin, nationals of the United States, of the remaining thirteen crew members for all injuries resulting from the willful and unlawful conduct of the Soviet Government, including the wrongful deaths of such crew members or the wrongful and unlawful detention by the Soviet Government of such members of the crew as survived, $650,000.00.

The United States Government declares that its demand for compensation on account of the members of the crew who survived does not imply the acquiescence of the United States Government in the withholding of those crew members from return to the United States, or the suppression by the Soviet Government of information regarding their whereabouts or welfare, or the making of false statements by the Soviet Government with respect thereto. The United States

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takes this opportunity again to demand that the Soviet Government forthwith provide the information in this regard which the United States Government has already requested, and make provision for the prompt return of any crew members whom it may still be holding or of whose whereabouts it is informed, and in the interim to provide such crew members with the maximum degree of care and comfort and facilitate access to them by appropriate representatives of the United States Government. The United States Government further declares that such demand for compensation with respect to members of the crew whose bodies came into the custody of Soviet authorities but who were no longer alive does not imply the acquiescence of the United States Government in the failure of the Soviet Government to inform the United States Government of such facts or to turn over such bodies to the United States Government. The United States Government further reserves the right to make additional demand upon the Soviet Government for amends or other actions on account of its conduct on or since July 29, 1953, with respect to such survivors or such dead crew members.

Furthermore, the United States Government has not included in its demand for damages, specified above, any sum on account of items of intangible injury deliberately and intentionally caused to the United States Government and to the American people by the wrongful actions of the Soviet Government. In this regard the United States Government had determined to defer to a future date the formulation of the kind and measure of redress or other action which the Soviet Government should take which would be appropriate in international law and practice to confirm the illegality of the actions. directed by the Soviet Government against the United States Government and against the American people.

The Government of the United States calls upon the Union of Soviet Socialist Republics promptly to make its detailed answer to the allegations and demands made in this communication.

Should the Soviet Government in its answer acknowledge its indebtedness to the United States on account of the foregoing and agree to pay the damages suffered and to comply with the demands as above set forth, the United States Government is prepared, if requested, to present detailed evidence in support of its calculations of damages suffered and alleged. If, however, the Soviet Government contests liability, it is requested so to state in its answer. In the latter event, the Soviet Government is hereby notified that the United States Government deems an international dispute to exist falling within the competence of the International Court of Justice and that the United States Government proposes that that dispute be presented for hearing and decision in the International Court of Justice. Since it appears that the Soviet Government has thus far not filed with that Court any declaration of acceptance of the compulsory jurisdiction of the Court, the United States Government invites the Soviet Government to file an appropriate declaration with the Court, or to enter into a Special Agreement, by which the Court may be empowered in accordance with its Statute and Rules

to determine the issues of fact and law which have been set forth herein.

The Soviet Government is requested to inform the United States Government in its reply to the present note of its intentions with respect to such a declaration or Special Agreement.

September 4, 1954 Incident (Sea of Japan)

20. NOTE FROM THE AMERICAN EMBASSY AT MOSCOW TO THE SOVIET FOREIGN MINISTRY, SEPTEMBER 5, 1954 1

[First Note]

1

A U. S. Navy P2V aircraft was attacked without warning by two MIG-type aircraft with Soviet markings at 1818 September 4 (local time). This attack took place over the international high seas approximately one hundred miles east of Vladivostok and forty-four miles from the Siberian coast.2 Each Soviet aircraft made one firing run on the U. S. Navy aircraft and disappeared towards the Siberian coast. As a result of this unwarranted and hostile attack, the U. S. Navy aircraft was destroyed. To this hour all survivors have not been recovered.

The U. S. Government protests this wanton and unprovoked attack on a U. S. Navy aircraft engaged on a peaceful mission over the high seas. The U. S. Government requests that measures be taken to subject those responsible to immediate and appropriate punishment. The U. S. Government reserves all rights to claim damages for loss of property and lives and for other circumstances resulting from this illegal attack by Soviet aircraft.

21. NOTE FROM THE AMERICAN EMBASSY AT MOSCOW TO THE SOVIET FOREIGN MINISTRY, SEPTEMBER 5, 1954 3

[Second Note]

3

The United States Government rejects as completely without foundation in fact the allegations contained in the Soviet Government's note number 340 dated September 5, 1954. As was stated in the Embassy's note number 160 dated September 5, 1954, the U. S. Navy aircraft was on a peaceful patrol mission over the high

1 Department of State Bulletin, Sept. 13, 1954, p. 364.

The U.S. Navy stated on Sept. 6, 1954, that the incident occurred about 120 to 125 miles southeast of Vladivostok. [Footnote in original.]

Department of State Bulletin, Sept. 13, 1954, p. 365.

+ Ibid.

seas some forty miles from the Siberian coast when it was attacked without warning and destroyed by two Soviet aircraft. At no time did the U. S. Navy aircraft open fire on the Soviet aircraft.1

The United States Government declares once more that it reserves rights to present claims for damages and expects that measures will be taken not only to subject those responsible to immediate and appropriate punishment but also to prevent recurrence of such wanton and unprovoked attacks.2

June 23, 1955 Incident (St. Lawrence Island)

22. NOTE FROM THE UNITED STATES GOVERNMENT TO THE SOVIET GOVERNMENT, JULY 7, 1955 3

3

The United States Government acknowledges receipt of the memorandum of the Soviet Government transmitted by the Soviet Foreign Minister, Mr. Molotov, to the Secretary of State, Mr. Dulles, on June 25, regarding the shooting down of a United States naval aircraft by Soviet military jet-propelled aircraft on June 23.

The facts in possession of the United States Government do not accord with the statements set forth in the Soviet memorandum under acknowledgment. The United States plane, of propeller type, was on a routine daylight shipping surveillance flight, of a regular and wellknown character. Such flights have been made at more or less regular intervals for some time past. The plane was on its regular route, which involved, at one point, flying over international waters in the channel between the United States (St. Lawrence Island) and the Soviet Union.

Carefully verified information discloses: that the United States plane was at no time nearer the Soviet Union than the approximate middle of the above-mentioned channel and was always well over international waters; that it did not at any time fire on the attacking Soviet aircraft; that no warning of any sort was given by the Soviet fighters before they opened fire on the United States plane.

1 Subsequent information obtained by the U.S. Navy disclosed that, after the second pass by the MIGs, one of the gunners on the U.S. plane was able to get off about 100 rounds of .50 cal. ammunition. [Footnote in Bulletin text.] 2 Ambassador Lodge discussed the Sept. 4, 1954, incident and related incidents in the U. N. Security Council on Sept. 10, 1954 (Department of State Bulletin, Sept. 20, 1954, pp. 417-420). See also "Report of the Security Council to the General Assembly Covering the Period From 16 July 1954 to 15 July 1955"; General Assembly, Official Records, Tenth Session, Supplement No. 2 (A/2935), pp. 15-18.

3 Department of State Bulletin, July 18, 1955, pp. 100-101. The note was transmitted to the Soviet Foreign Ministry by the American Embassy at Moscow. See also Secretary Dulles' remarks of June 28, 1955; ibid., July 11, 1955, pp. 50,

♦ Ibid., July 18, 1955, pp. 101–102.